Judgment:
1. The grievance of the applicant in this case is that when the TA bearing No. 2 of 1993 (CR 10208-W/1984) filed by the applicant challenging the validity of the proposed order of termination of his service issued 12.7.84 by the respondents is pending for adjudication, the respondents promoted his junior officer, respondent No. 4 to higher posts ignoring him. The Tribunal set aside the said order dated 12.7.84 with a direction upon the respondents to consider the case of the applicant for the post of Junior Draftsman in the office of the respondents in accordance with the instruction of the Railway Board circular dated 25.6.85. Despite this fact, his claim for promotion prior to the respondent No. 4 has been denied by the respondents vide letter dated 17.9.93 (Annexure 'A/9'). Hence he filed this case.
2. The case of the applicant, in short, is that the applicant was appointed as a casual Tracer in the office of the Divisional Personnel Officer, Eastern Railway, Danapur in the year 1974 by a letter of appointment dated 13.9,74, Annexure 'A/1'. Thereafter he was found suitable and posted as a regular Tracer by a letter dated 22.9.79, Annexure 'A/2' to the application. The respondent No. 4, Shri S.K.Tewari has been appointed in Class IV service and was promoted as ad hoc Tracer in Class III service much after the applicant was posted even on regular basis in the year 1979 by a letter dated 22.9.79, Annexure 'A/2'. By a letter dated 25.10.80, Annexure 'A/4' the applicant and the respondent No. 4 were advised to appear before the selection board at Mughalsarai for selection as Junior Draftsman.
Accordingly the applicant appeared before the selection board along with other persons and thereafter applicant was also sent for medical examination and for refresher course training held from 2.9.81 to 30.9.81 at Dhanbad and he qualified in that course as appeared from the letter dated 30.9.81, Annexure 'A/6'. Thereafter the respondents by a letter dated 12.7.84 sought to terminate the service under Rule 149 of the Indian Railway Establishment Code, Vol. I and feeling aggrieved by the said proposed order of termination, the applicant approached the Hon'ble High Court of Calcutta by filing a writ petition and obtained an interim order of stay and as a result the applicant continued to hold the post of Tracer. Ultimately, the case has been transferred to the Tribunal for adjudication from the Hon'ble High Court and the case was numbered as TA 2/93 (CR 10208-W/84) and it was disposed of on 6.4.93, Annexure 'A/7' to the application and in that judgment dated 6.4.93, Annexure 'A/7' to the application the Tribunal set aside the proposed order of termination dated 12.7.84 with a direction upon the respondents to consider the case of the applicant for the post of Junior Draftsman in accordance with the instruction of the Railway Board circulated vide letter dated 25.6.85 within a period of one month. After the judgment dated 6.4.93 (Annexure/A7), the applicant made a representation about his seniority vide his letter dated 2.4.94, Annexure 'A/12', but nothing has been done by the respondents. It is alleged by the applicant in para 4.12 of the OA, that he was appointed on regular basis vide Annexure/2 (i.e., 22.9.79) and the same has been accepted by the Tribunal in the said order (Annexure/ 'A7') and the respondents should have effected the order of regular absorption and the applicant should have been given seniority over the respondent No.4, who is junior to the applicant as per date of appointment as Tracer.
According to the applicant, due to stay order passed by the Hon'ble High Court in the case filed by the applicant, he had continued to hold the post and therefore, he is entitled to get the benefit of seniority as Tracer (Casual) from the date the applicant was awarded the temporary status. It is stated that in a case of Sri U.P. Srivastava v.T. V. Sumathy the seniority was counted from the date of appointment as Casual Tracer, but the applicant has been denied the benefit. It is also stated by the applicant that he has been transferred and posted on being found suitable as regular Tracer under Sr. DEN, Mughalsarai vide Mughalsarai's office order dated 22.9.79, Annexure 'A/2' to the application, but in the meantime Shri S.K. Tewari, respondent No. 4 came under the Sr. DEN, Mughalsarai accepting the bottom' seniority vide his letter dated 13.7.79, Annexure 'A/17' and he was treated on absorption as regular Tracer on 26.9.79 vide letter dated 22.9.79, Annexure 'A/18' and the respondent No. 4 joined the Sr. DEN's office on 27.10.79 as per letter dated 29.10.79, Annexure 'A/ 19' and name of the respondent No. 4 was included as Junior Draftsman in the scale of Rs. 330-560/- vide office order No. 402/86 and the name of the respondent No. 4 was included in the list for promotion as Senior Draftsman vide order dated 8.4.86, Annexure 'A/21' and thereafter the respondent No. 4 has been promoted as Chief Draftsman in the scale of Rs. 2000-3200/- by a letter dated 8.7.93, Annexure 'A/22' ignoring the case of the applicant who joined as regular Tracer on 26.9.79 whereas the respondent No. 4 joined as regular Tracer on 26.10.79. Therefore, he had filed this application with the prayer that the order dated 17.9.93, Annexure 'A/9' issued by the Sr, D.P.O., respondent No. 3 should be quashed and the respondents be directed to consider the applicant as regular Tracer from the date as contained in the order of appointment, Annexure 'A/2' and seniority should be given accordingly over the respondent No. 4.
3. All the respondents including the respondent No. 4 filed written replies in this case denying the claim of the applicant. In the reply it is stated by the respondents that the applicant was Casual Labour (Khalasi) working in Danapur Division under the Signal Inspector (Cons) from 22.3.71 to 18.9.74. When Mughalsarai Division was created a large number of staff needed to run the Division. The applicant came from Danapur division and anyhow manipulated to work as Tracer. When papers were demanded from Danapur Division, it was informed by it vide its letter dated 24.2.81 that no casual Labour against the post of Tracer in scale of Rs. 260-430/- (RS) can be taken in terms of Sl. No. 6931.
Moreover, the appointment of the applicant was not approved by the Headquarters as regular Tracer and it was also not approved by the Railway Service Commission and lastly, his service was terminated under Rule 149 of the Railway Establishment Code, Vol. I. Later on the applicant filed a case before the Hon'ble Calcutta High Court and got the stay order and finally he was reinstated as per order of the Tribunal.
4. It is also stated by the respondents that in seniority list of Junior Draftsmen published on 14.12.81 the applicant was shown as casual Tracer at Sl. No. 8 under heading Tracer Gr. III (Rs. 260-430/-), whereas respondent No. 4 was shown at Sl. No. 6. It is also stated by the respondents that again a seniority list was published on 1.4.85 in which respondent No. 4 was shown at Sl. No. 6 as regular Tracer whereas the applicant was listed at Sl. No. 8 as casual Tracer, but this time too the applicant did not raise any objection, It means that the seniority list published by the respondents was correct and the applicant had accepted the same. Again a seniority list was published on 2.9.89, in which the respondent No. 4 was at Sl. No. 7 as Sr. Drastsman in the scale of Rs. 1400-2300/- whereas the applicant was shown at Sl. No. 1 in the scale of Rs. 975-1540/- as casual Tracer and the applicant this time also did not submit any objection. Therefore, it is clear that from the beginning the applicant was shown as casual Tracer, but he did not raise any objection. In other words, he did not object because he was a casual Tracer. Therefore, the contention of the applicant is not correct and he cannot claim seniority over the respondent No. 4, It is stated by the respondents that respondent No.4, Shri S.K. Tewari was appointed as regular Khalasi vide office order dated 23.5.73 and joined on 25.5.73. Thereafter he was promoted to officiate as Tracer and later on he was made regular on that post as per rules and thereafter he was promoted as Junior Draftsman with effect from 24.4.81 vide order dated 24.6.85, Annexure 'R/2' to the reply and thereafter he was promoted as senior Draftsman with effect from 1.1.84, under the restructuring programme of the Railway Board and he was confirmed as such and thereafter he was promoted as Head Draftsman in the scale of Rs. 1600-2660/-vide order dated 28.10.91, Annexure 'R/10'. Thereafter he was again promoted as Chief Draftsman under restructuring programme of the railway vide letter dated 8.7.93 with effect from 1.3.93, Annexure 'R/11'. Therefore, it is clear that Shri Tewari, respondent No. 4 was promoted from time to time on higher posts as per extant rules, whereas the applicant was a Casual Tracer and was removed from service, but as per order of the Tribunal he was reinstated as Junior Draftsman on 16.6.92 vide order dated 17.9.93. So, the applicant cannot claim seniority over respondent No. 4. Therefore, the application is liable to be dismissed as being devoid of merit.
5. It is also stated by the respondents that this Tribunal has no jurisdiction to try this case since the applicant was working within the jurisdiction of Patna Bench of the Tribunal, So, the application should be returned to the applicant for filing the same before the appropriate forum in accordance with the rules.
6. Mr. Jha, learned Advocate appearing on behalf of the applicant strenuously argued before us stating Inter alia that the applicant joined as regular Tracer on 26.9.79 when the respondent No. 4 joined as such on 27.10.79. Moreover, he contended that the respondent No. 4 appeared in the same test which was held for the applicant for regular Tracer and on that basis the respondent No. 4 rose from the post of Tracer to the post of Chief Draftsman when the applicant is languishing in the post of Junior Draftsman and the respondents totally ignored the seniority of the applicant in the cadre of regular Tracer when the respondent No. 4 has been promoted to the higher post from the post of Tracer. Mr. Jha further contended that the applicant's service from the post of regular Tracer was sought to be terminated by the respondents and he approached the Hon'ble High Court at Calcutta by filing a writ application challenging the validity of the order of termination from the post of Tracer and that writ petition has been transferred to this Tribunal and numbered as TA 2/93 and that application has been allowed by the Hon'ble Tribunal holding that the order of termination proposed to be made by the respondents under order dated 12.7.84 is illegal and the respondents were further directed that in view of the instruction in the Railway Board's circular dated 29.6,85 and in the light of the judgment of the Patna Bench the case of the applicant should be considered by the respondents for the post of Junior Draftsman, but during the pendency of the application filed by the applicant for adjudication in the High Court and Tribunal, the respondents promoted Shri S.K. Tewari to the post of Junior Draftsman and thereafter to the post of Sr. Draftsman. Therefore, grave injustice has been done to the applicant and the applicant is entitled to get the benefit of promotions to the post of Junior Draftsman and Sr. Draftsman/Chief Draftsman respectively where his junior person viz., respondent No. 4 got the promotion to those higher posts.
7. Mr. S.K. Mitra, learned Advocate appearing on behalf of the private respondent No. 4, Shri S.K. Tewari contended that the applicant has no stand to get the relief in this case as sought for. The applicant was never similarly circumstanced, since the applicant's appointment for the post of regular Tracer has not been approved by the competent authority. Moreover, the applicant has not been able to produce any piece of paper in support of his contention that he was appointed as a regular Tracer in accordance with the recruitment rules and he further submits that the alleged appointment as Tracer of the applicant was done wrongly since the respondents by a letter dated 19.7.75 intimated that no casual labour against the post of Tracer can be taken in the scale of Rs. 260-430/- (RS) in terms of Sl. No. 6931. It is admitted by the applicant that he was appointed as a casual labour (Khalasi) under Signal Inspector, Danapur and he worked there from 22.371 to 18.9.74 and it is evident from the records of the Department that the applicant was casual labour/Tracer till 6.4.1993, the date of passing of the order of this Tribunal in TA 2/93. Hence the applicant has no case.
8. Learned advocate for the respondent No. 4 submits that the respondent No. 4 has been working as a Tracer under Electrical Department with effect from 17.2.75 vide letter dated 26.2.74, Annexure 'R/6' and respondent No. 4 was drawing the pay scale of Rs. 260-430/- on being found suitable for promotion to the post of junior draftsman and he got promotion to the post of junior draftsman in accordance with the rules against the vacancy arose due to restructuring of draftsman cadre vide order dated 20.11.84, Annexure 'R/8' and the respondent No.4 was appointed as regular in accordance with the rules. The respondents further submits that the seniority list was prepared long back and it was finalised. The applicant did not raise any objection against the seniority list prepared by the Department in the year of 1981, 1985 and 1989 as per Annexures 'R/13', 'R/14' and 'R/ 15' respectively. So, the question of promotion of the applicant prior to respondent No. 4 against the post of Junior Draftsman, as claimed by the applicant is not sustainable and liable to be dismissed and his claim is barred by limitation. Learned Advocate for the official respondent also endorsed the arguments advanced by the learned Advocate of the respondent No. 4 and he submits that the applicant's case is hopelessly barred by limitation since the applicant did not raise any objection against the seniority list published by the Department in the years of 1981, 1985 and 1989, Annexures 'R/13', 'R/14' and 'R/15' respectively and he approached this Tribunal for getting the benefit of promotion with retrospective effect after having been allowed to continue in the service by the order of the Tribunal. Therefore, after a lapse of so many years the applicant cannot claim that he is senior to respondent No. 4 from the very inception. So, the application being delayed one should be dismissed.
9. We have considered the submissions of the learned Advocates of all the parties and we have gone through the papers. It is found that the applicant's service as Tracer was sought to be terminated by the respondents vide order dated 12.7.84 since he was not regularly appointed in the service and he challenged the order of proposal of termination from the post of Tracer before the High Court by filing a writ petition being numbered CR 10208-W/1984 and that case has been transferred to this Tribunal for adjudication and numbered as TA 2/93 (CR 10208-W/1984) and the same has been disposed of by this Tribunal on 16.4.93 vide judgment marked as Annexure 'A/7' to the OA. It is found from the order that the Tribunal did not find any justification to terminate the service of the applicant, Annexure 'A/7' to the application and it is found that the Tribunal directed the respondents to consider the case of the applicant for promotion to the post of Junior Draftsman in accordance with the rules after setting aside the order of termination dated 12.7.84, but the Tribunal did not make any finding that he was regular Tracer. The fact remains that due to stay granted by the Tribunal against the order of termination passed on 12.7.84 the applicant was allowed to continue in the service as tracer though the post of the Tracer has been freezed. It is also mentioned by the Tribunal in the order dated 6.4.93, Annexure/A7 that the order of termination passed on 12.7.84 is hereby set aside and as the post of Tracer has been freezed, until such regularisation is made to the post of Junior Draftsman in terms of the Railway Board circular dated 25.6.85, status quo as on today shall be maintained. The applicant admittedly being strengthened by the order of the Tribunal made representation to the authorities claiming seniority as well as claiming promotion to the post of Junior Draftsman and to the higher post from the date when the respondent No. 4 got promotion to the higher post from the post of Tracer. We find that the seniority lists had been published in the years of 1981,1985 and 1989, Annexures 'R/13', 'R/14' and 'R/ 15' respectively and where the position of Shri'S.K. Tewari, respondent No. 4 was shown above the applicant, Shri A.K. Ghosh. Learned Advocate of the applicant contended that since the Damocles sword was hanging over the head of the applicant due to alleged termination order passed by the authority on 12.7,84, the applicant could not make any representation claiming seniority until and unless the case was decided by the Tribunal in his favour by passing the judgment on 6.3.93. We are unable to accept this contention of the learned Advocate of the applicant on that score. It is true that the order of termination was passed on 12.7.84 and the applicant approached the Hon'ble High Court and obtained a stay order against the order of termination dated 12.7.84 and by virtue of the said stay order he was allowed to continue as such as Tracer. Now the applicant has sought for regularisation of his service as Tracer by claiming relief in this case, as his appointment as Tracer has not been approved by the respondents as it is evident from the relief sought for in this application. Moreover, the applicant failed to produce any appointment letter to show that he has been initially appointed as regular Tracer from the post of Casual Labour. So, absence of letter of appointment, if any, issued by the appointing authority in favour of the applicant that would not confer any right on the applicant to claim the benefit of such order. It is to be proved that he had been appointed as regular Tracer in accordance with the rules and by the competent authority. The letter marked as Annexure A/1 is not a letter of appointment. The applicant fails to explain as to why he could not be able to produce official appointment order as Tracer from the post of Casual Labour.
Rather the respondents in their reply categorically stated that the Casual Labour cannot be regularised in the scale of Rs. 260-430/- and the appointment of the applicant had not been approved by the competent authority. We are, therefore, of the view that since the applicant by virtue of a stay order granted by the High Court, continued to work in the Department in the post of Tracer from which he was sought to be terminated by an order dated 12.7.84, he could have made a representation to the authority, if he had any grievance in respect of seniority lists published in the years 1981, 1985 and 1989. Moreover, it is found that the first seniority list was published on 14.12.81 and the applicants service was sought to be terminated on 12.7.84 and the applicant did not raise any objection against the first seniority list and the seniority list was published finally. On the basis of the said seniority list the respondent No. 4 got promotion to the post of Junior Draftsman and thereafter he has been further promoted to the post of Senior Draftsman and Chief Draftsman respectively. In the seniority list dated 14.12,81 (Annexure A/13), he was shown as Casual Tracer. It is admitted by the respondents. The Hon'ble Apex Court in O.P, Singla and Anr. v. Union of India and Ors., AIR "The pre-requisite of the right to inclusion in acommon list of seniority is that all those who claim that right must, broadly, bear the same characteristics. The mere circumstance that they hold posts which carry the same designation will not justify the conclusion that they belong to the same class. Persons who are appointed or promoted on an ad hoc basis or for fortuitous reasons or by way of a stop gap arrangement cannot rank for purposes of seniority with those who are appointed to their posts in strict conformity with the rules of recruitment, whether such latter class of posts are permanent or temporary....." By this application the applicant sought direction upon the respondents to accord approval for appointment in the post of Tracer. Therefore, in view of the aforesaid circumstances we find that although both the applicant and the respondent No. 4 hold the post of Tracer, they do not bear the same characteristic in respect of appointment in the cadre of Tracer.
10. Besides that, it is evident that his cause of action arose in respect of seniority in the year of 1981, when the first seniority list was published (Annexure A/13). He did not raise any objection. He made representation in the year of 1993. Moreover, the applicant became aggrieved by promotion of the respondent No. 4 in the cadre of junior Draftsman, Senior Draftsman and Chief Draftsman. He did not raise any objection. In the case of P.S. Sadha Siva v. State of Tamil Nadu, 1975(1) SCC 125, the Hon'ble Apex Court held 'the person aggrieved by an order of promotion of junior should approach the Court within one month or at the most of a year of such promotion'. Moreover, the applicant did not file any application for condonation of delay, since his first cause of action arose in the year of 1981 and 1985 respectively and he filed the application after (sic) 10 years their time barred application for which no condonation of delay was sought for by the applicant, therefore, the OA is barred by limitation in view of the judgment passed by the Hon'ble Apex Court in 1999(8) SCC 324 in case of Ramesh Ch. Sarma v. Uma Singh Kamal and Ors. Besides, since the applicant did not make any representation against the seniority lists published by the Department on different dates till 1993, therefore, it would be highly unjustifiable on our part to interfere with the seniority lists which had been finally published long back.
11. In view of the aforesaid circumstances we are unable to find any merit in the application and we find that the application is time barred and devoid of merit and liable to be dismissed. Accordingly, it is dismissed awarding no cost.